Warren goes after the filibuster

If Senator-elect Warren becomes known as the legislator who brought sanity to the filibuster, she will have accomplished more in one term than many in Washington.

She couldn’t have picked a better target for two reasons:

First, the constant use of fake filibusters (where Senators just phone it in rather than actually take to the floor) is a sham and a radical change to a storied tradition and one that keeps the Senate from doing its job.

Second, a newly elected Senator taking on a Senate tradition is not how things are supposed to be done.  Freshmen are not to be seen or heard.  Clearly, the new Senator from Massachusetts doesn’t intend to abide by this unwritten rule.  Bully for her. There are some traditions that ought not to be sacralized.

The filibuster has become a symbol for the over-the-top obstruction that has plagued Washington DC of late.

At its best, the filibuster preserves the counter-majoritarian thrust of the Constitution.  It is a tool to say no, to stand on principle against popular majorities.  It ought to be preserved even if the reality of its history shows that the filibuster has not always been used to preserve the solemn rights of an oppressed minority.  Its storied place in history belongs to a fictional character, cited by Warren in her recent HuffingtonPost piece.

The filibuster was featured in the 1939 film, Mr. Smith Goes to Washington but its worth noting that it was inaccurately portrayed in the film as democracy’s finest moment.  A filibuster is anti-democratic.  It allows one single Senator to obstruct the will of the majority, even an overwhelming majority.

That’s not a critique.  The Constitution creates a government that is anti-democratic and resistant to the will of the majority in many places.

Worth noting also that in its fictional adaptation by Frank Capra, the filibuster itself didn’t help Jefferson Smith.  His fate was only freed from the grip of political corruption by the flash of conscious by the two-faced Senator Joseph Paine.

Paine was so moved by the fortitude of his colleague during the filibuster that he attempted to take his own life.

Capra’s version of the filibuster is the stuff of Hollywood.  It is not the stuff of Washington.

Rather than raging on behalf of justice and truth against a corrupt system, many actual filibusters have proven to be of somewhat lesser vintage.

Segregationist South Carolina Senator Strom Thurmond filibustered the modest Civil Rights Act of 1957 for 24 hours and 18 minutes.  West Virginia’s Robert Byrd spoke for 14 hours and 13 minutes, part of a 57 day group filibuster against the 1964 Civil Rights Act.  North Carolina’s Jesse Helms engaged in a filibuster over the course of 16 days to protest a federal holiday for Martin Luther King, Jr.

There have been others fighting a good fight.  But there’s also been Al D’Amato fighting for base, parochial interests such as the fate of a typewriter factory in upstate New York in 1992.  A typewriter factory. In the 1990s.

All of this would be nothing more than an interesting and mixed history for a rarely employed rule of the Senate.  But then our modern Senate decided to employ the fake filibuster. And then they put that on steroids.

Ezra Klein in the Washington Post points out that the filibuster is now a near constant in the legislative process and the norms of the Senate have shifted as a result.

While some contend the tradition of unlimited debate constitutes the soul of the Senate, the filibuster as presently used is nothing more than politics by other means.  It routinely obstructs the legislative process and discourages principled compromise.  Senators need not engage with one another to prevent a bill or amendment from reaching the floor.  They only need to sign on to a fake filibuster, compromise or conversation be damned.

And they don’t need to actually filibuster, as Klein points out.  They really do just phone it in, making the opposition clear so a cloture vote will either have to be scheduled and debated or a bill scuttled beforehand.

The fake filibuster is currently used to prevent governance, ensuring that elections do not have consequences.

Which brings me back to the essential conservatism of Warren’s goal.   The Senator-elect and a few of her new colleagues are trying preserve a very old tradition against its radical redefinition.

To quote Warren: “If someone objects to a bill or a nomination in the United States Senate, they should have to stand on the floor of the chamber and defend their opposition.”

A Senator who wishes to filibuster should, well, actually filibuster.  The Senate would be vastly improved as a legislative body should Warren’s quite traditional rule replace the radical rule currently masquerading as a filibuster.

About Peter Ubertaccio

Peter Ubertaccio is the Director of Joseph Martin Institute for Law & Society at Stonehill College in Easton and Associate Professor and Chair of the Department of Political Science & International Studies. His work focuses on political parties, marketing and institutions. He received his Ph.D. in Politics from Brandeis University in Waltham, MA. Professor Ubertaccio and his family live on Cape Cod where he is on the Board of Directors of the OpenCape Corporation and the Sandwich Economic Initiative Corporation.
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